Justice Sanjay Kishan Kaul in webinar by CAN Foundation
Justice Sanjay Kishan Kaul in webinar by CAN Foundation

"There is debasement in the manner of dissent taking place", Justice Sanjay Kishan Kaul

"What is required is that a difference of view must be set forth in a manner that conveys the difference of opinion but does not make it shrill, whether it is a lawyer addressing it or a judge", Justice Kaul said.

Shruti Mahajan

The Supreme Court's Justice Sanjay Kishan Kaul on Saturday opined that while dissenting views in any society are crucial, there appears to be debasement in the manner of such dissent.

Justice Kaul was the keynote speaker of a webinar organized by CAN Foundation in association with GNLU, Gandhinagar on the subject 'Dissents that made a difference: India & Abroad'. At the end of the session, the judge sought to give his parting thoughts on the importance of dissent in civil society as well as the role of the Judiciary.

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The judge said that dissent has never been a problem and every society must and ought to have dissent and difference in points of view. However, he added,

"Where there has been a debasement is the manner of dissent taking place. It is true of every field in which it is occurring... What is required is that a difference of view must be set forth in a manner that conveys the difference of opinion but does not make it shrill, whether it is a lawyer addressing it or a judge."
Justice Sanjay Kishan Kaul

Justice Kaul elaborated that while no opinion is right or or wrong, there appears to be a loss of respect for one another's views and opinions in today's discourse. Respect for differing opinions is "necessary", he added.

The judge pointed out that courts today are facing criticism from various sections of society. The critics sometimes question how far the court can go in the exercise of its powers, and sometimes say that courts have not done enough, he said.

But the judicial system also has its limitations and there is a jurisdictional scope within which the Judiciary ought to function, Justice Kaul said.

"In our Constitutional democracy, we have an elected government in power and there exists a separation of powers. The Courts have to perform the delicate role of balancing the checks and powers provided for to the executive. Courts cannot be unelected governments", the judge said.

"While judging the role of the Judiciary, it must be treated as a constructive approach...There are limitations, the judiciary is not assigned the role of running the system, but putting the checks and balances in the system."
Justice Sanjay Kishan Kaul

In providing these checks and balances, the Court is inherently minoritarian, because the majority view is reflected in the elected government. In these checks and balances, there is a place for dissent, Justice Kaul opined.

Justice Kaul also lamented that today, the courts are faced with a situation where a lot of matters come before them under the garb of public interest litigation, but have political undertones. These matters were never envisioned to be dealt with under the PIL system, given that PIL was developed to be a tool in the hands of the weaker sections to seek justice and enforcement of rights.

"We are faced with what are called political matters, which lead to a shrill discourse."
Justice Kaul

This growing trend also makes it pertinent for the criticism of the Judiciary to be weighed against the maintenance of balance of powers as the Court has a role very different from that of the elected government or the Executive, Kaul J further added.

Senior Advocate Dhruv Mehta, who was a co-panelist for the session, also expressed his thoughts on the importance of freedom of speech and expression in a democracy.

"Freedom of Speech and Expression is of utmost importance. Without freedom to speak, exchange ideas, and criticize judgments, there would be no democracy. Criticism of judgments is a welcome phenomenon."
Dhruv Mehta
Senior Advocate Dhruv Mehta in webinar by CAN Foundation
Senior Advocate Dhruv Mehta in webinar by CAN Foundation

Noting that the development of law is constantly evolving, Mehta implied that criticism of judgments often adds to this process of evolution of law.

"Criticism is not always negative, sometimes it is constructive and this is how law and society evolve."
Dhruv Mehta

During the session, Kaul J and Mehta delved into the famous landmark dissents that in one way or the other, shaped Indian law as it stands today.

These included UK Judge Lord Atkin's dissent in the Liversidge v Anderson case and Abrams v United States, which saw the laying down of the principle of "marketplace of ideas" by Justice Oliver Wendell Holmes.

The dissents of Justice HR Khanna in the ADM Jabalpur case, the upholding of this minority view subsequently in 2017, the dissent by Justice Subba Rao on right to privacy becoming the law of the land in the 21st century, and the dissent by Justice AN Ray leading him to eventually supersede three judges to become Chief Justice of India were among the other cases discussed.

The session was moderated by Advocates Anupama Dhurve and Kanu Agrawal.

Partner at J Sagar and Associates, Prasanth VG hosted the session, while Director at GNLU, Prof (Dr) S Shanthakumar delivered the welcome address.

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